Shut the Door on Torture Once and For All
One of the Obama Administration’s mistakes was the failure to hold accountable any high-level official post 9/11 for their participation in or authorization of torture. Failure to hold accountable those who commit crimes invites history to repeat itself. Here is what President Biden and Congress can do to close the door on torture once and for all.
Provide transparency. As much as we know about torture committed post 9/11, there is evidence that has yet to be released. Biden should declassify the:
§ Full report by the Senate Select Committee on Intelligence on the CIA’s Detention and Interrogation program;
§ Durham report that examined possible criminal conduct by U.S. officials in connection with the U.S. torture program;
§ Panetta review that was an internal assessment of the CIA torture program;
§ Information concerning CIA, DoD, or other agency knowledge of, or participation in, the torture of Yemeni prisoners held by the United Arab Emirates; and
§ Any other documentary evidence, including videotapes, that pertains to the torture program.
Strengthen Torture Laws. While international and domestic laws are and have been clear that torture is illegal, the legal frameworks can be buttressed. Here are legislative opportunities to reinforce the laws against torture:
§ Modernize the Torture Statute. The Torture Act and other atrocity statutes contain gaps. The torture statute, for example, does not apply to non- state actors, like al-Qaeda, ISIS or Boko Haram. The torture statute’s current effective date of November 1994 renders the statute ineffective for all abuses committed, for example, in Latin America and Africa during the eighties and early nineties. As with common law murder, there should be no statute of limitations on torture or other human rights crimes.
§ Adopt a Crimes Against Humanity Statute. The U.S. has no law to prosecute crimes against humanity — a central pillar of international criminal law since World War II. Crimes against humanity includes a constellation of acts, including torture, made criminal when perpetrated as part of a systematic or widespread attack against civilians.
§ Amend the Torture Victim Protection Act. Amend the Torture Victim Protection Act to expand the civil causes of action from torture and extrajudicial killing to the jus cogens violations previously litigated under the Alien Tort Statute, such as crimes against humanity.
Appoint a New Special Prosecutor to Review Torture Allegations. President Biden should ask the Attorney General to appoint one or more special counsels to investigate whether Bush Administration officials violated laws against torture. There has been no criminal investigation into whether high level officials authorized torture post 9/11.
The investigation conducted by special prosecutor John Durham was into whether the destruction of CIA interrogation videotapes violated any criminal statutes and whether CIA agents committed torture in 101 detainee interrogations. Then Attorney General Holder said that the Department of Justice would not “prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding any interrogation of detainees.”
The instructions to John Durham were in error. The Geneva Conventions, Convention Against Torture, the Torture Act, The Torture Victim Protection Act, and both US and international jurisprudence have been unequivocal about what constitutes torture. The special counsel should have investigated whether the laws against torture were violated, not whether individuals relied in “good faith” on the Office of Legal Counsel memos, aka the “torture memos,” written by John Yoo and Jay Bybee, that attempted to give after-the-fact legal cover to acts of torture. Numerous courts have rejected an “advice of counsel” defense when the advice was sought as a way to justify illegal activity.
In this era of divided government, Congress continues to demonstrate bipartisan support for holding human rights abusers accountable, evidenced by passage of the Elie Wiesel Genocide and Atrocities Prevention Act where Republican co-sponsors in the Senate included Senators Boozman, Collins, Murkowski, Rubio, Tillis, and Young. The Senate approved the McCain Feinstein Amendment that updated torture standards in the Army Field Manual by a vote of 78–21, with Sens. Paul and Collins as original co-sponsors. Despite the bipartisan support, former officials continue to defend use of torture. Trump called for measures worse than waterboarding, and appointed those implicated in torture to senior positions in his Administration, like former CIA Director Gina Haspel. Unless there are finally consequences for torture, it will return. That cannot stand.
